Criminal Law – revocation of conditional discharge: Gamble v. Commonwealth (COA 6/5/2009)

Gamble v. Commonwealth
2008-CA-000015 06/05/2009 2009 WL 1562881

Opinion by Senior Judge Buckingham; Chief Judge Combs and Judge Acree concurred. The Court affirmed an order of the circuit court revoking appellant’s conditional discharge of a five-year prison term for the criminal offense of flagrant nonsupport. The Court first held that money owed for past-due child support constituted “restitution” as defined by KRS 532.350(1)(a), and therefore, before probation or conditional discharge could be revoked based on a failure to pay, the requirements of Bearden v. Georgia, 461 U.S. 600, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), must be met. Thus, the trial court was required to determine appellant’s reasons for failure to pay. However, Commonwealth was not required to prove the reasons appellant failed to make such payments and because appellant asserted a Fifth Amendment privilege against self-incrimination in the probation revocation hearing in response to questions concerning why he had not paid past-due child support, he effectively precluded the trial court from making the relevant inquiry. The Court then held that the trial court’s findings of fact were sufficient to meet the minimal due process requirements applicable to a probation revocation hearing. Appellant was given notice of the single reason for the revocation hearing, was present to hear the evidence and the oral comments of the trial judge following the hearing, and understood that his probation was revoked due to his failure to pay child support. Therefore, the trial court did not abuse its discretion in revoking appellant’s probation.

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